Considered
and decided by Stoneburner,
Presiding Judge; Dietzen,
Judge; and Worke,
Judge.

U N P U B L I S H E D O P I N I O N

STONEBURNER, Judge

In this consolidated appeal, the
defendant challenges his conviction of felon in possession of a firearm, and
the state challenges the downward sentencing departure. Because the warrant application did not
provide probable cause to search the defendant’s residence, the district court
erred in denying his motion to suppress evidence of the firearm. Because suppression of the evidence requires
reversal of appellant’s conviction, we need not address the state’s sentencing
appeal; however, in the interest of judicial economy, we review the issue and
conclude that the district court abused its discretion in granting a downward
sentencing departure.

FACTS

Detective Brad Stuvland applied for
a search warrant to search apartment #2 of an apartment building located at
1103 19th Street South in Moorhead (the apartment building). Appellant Roberto Jimenez Ybarra lived in apartment #2 but was
not the target of any investigation.

Detective Stuvland’s affidavit
supporting the application contained the following information purporting to
support the search of apartment #2. Detective Stuvland, an experienced police
officer assigned to drug investigations, received information from two
confidential reliable informants (CRIs) that Erik Madrid, a Hispanic male with
a history of drug-related convictions, was selling drugs from his vehicle near RomkeyPark
on 19th Street South
in Moorhead. CRI #1 reported that he knew an individual
who lived on 19th Street South;
this individual told CRI #1 that he purchases marijuana from Madrid,
and CRI #1 had seen Madrid
visit the individual at the individual’s residence within the last four weeks. While investigating CRI #1’s information,
Detective Stuvland learned that Madrid’s
vehicle was registered to his wife whose birth-given surname is Ybarra. Detective
Stuvland learned from CRI #2 that approximately two weeks before the warrant
application, Madrid
told CRI #2 that he had a pound of marijuana to “unload.” CRI #2 also reported that Madrid
was going to Mexico
to pick up a large quantity of drugs to bring back to the Fargo-Moorhead
area. U.S. Immigration and Customs
Enforcement verified that Madrid had crossed
into Mexico from Texas, near the New
Mexico border, ten days prior to the warrant
application.

Two days before the warrant
application, CRI #1 informed Detective Stuvland that he had seen Madrid on 19th
Street South near RomkeyPark
twice that day. The first time, Madrid was sitting in
his parked vehicle, as he had done in the past while waiting to make what was expected
to be a drug-money exchange with someone in another vehicle. The second time, Madrid was parked at the apartment
building.

A “Source of Information” (SOI), who
had previously provided reliable information to Moorhead
police, confirmed that Madrid was involved in
drug sales and reported that Madrid
frequently visited the apartment building.
The SOI also reported that Adrianne Ybarra, who, according to the SOI,
“obtains quantities of methamphetamine from an individual that transports them
here from California[,] . . . has
moved into or is going to move into” the apartment building. The SOI said that Adrianne Ybarra is related
to Madrid’s
wife, Jennifer Ybarra-Madrid. Detective
Stuvland checked public service records and observed that Raquel Ybarra, also related
to Jennifer Ybarra-Madrid, lives at the apartment building in apartment #2.

The day before Detective Stuvland
applied for the warrant to search apartment
#2, he obtained a warrant to search Madrid and his
vehicle. On the day of the application
for the warrant to search apartment
#2, the SOI informed a different detective that
about 30 minutes before the conversation, he had observed Madrid and another male “carrying three bags”
into apartment #2. About 5 minutes after the SOI relayed this
information, Detective Stuvland saw Madrid
leaving the apartment building in his vehicle.
Detective Stuvland stopped Madrid
and recovered 5.1 grams of a substance that field-tested positive for
cocaine. The detective then had officers
secure apartment #2. Residents of apartment #2 confirmed that Madrid had recently been
at the apartment. Detective Stuvland
stated that, based on his training and experience, “it is common for
individuals that are involved in the sale of drugs to travel to Mexico to
obtain large quantities of drugs,” and “to store their drugs at residences
other than their own.”

Based on this information, a search
warrant was issued for apartment #2,
authorizing a search for “[c]ontrolled substances to include but not limited [to]
cocaine, methamphetamine and marijuana,” and other drug-related items listed in
an attached form. During the execution
of the warrant, police found a loaded handgun under a couch cushion in the
living room and 81.7 grams of marijuana packaged in three zip-lock baggies in
the bedroom. Ybarra, who is ineligible
to possess a firearm because of prior felony convictions, admitted that the gun
and drugs belonged to him.

Ybarra was charged with a
controlled-substance crime and felon in possession of a firearm. The district court rejected Ybarra’s argument
that the search of his home was unconstitutional and denied Ybarra’s motion to
suppress the evidence seized. The state
dismissed the controlled-substance charge in exchange for Ybarra’s agreement to
waive a court trial on the felon-in-possession charge. The case was submitted on stipulated facts
under State v. Lothenbach,296 N.W.2d 854 (Minn. 1980), and Ybarra was convicted.

At sentencing, the district court
invited argument from the parties regarding the appropriate sentence. The state argued for the presumptive
guideline sentence of 60 months in prison, as recommended in the presentence
investigation report. Ybarra requested a
downward durational departure to 30 months.
Noting that none of Ybarra’s prior convictions involved firearms or acts
of violence, the district court sentenced Ybarra to 30 months, stating, “I do
believe that the presumptive 60-month sentence is unduly harsh given the nature
of the criminal history and the current offense, and so I am going to depart
downward durationally.” Both parties
appealed, and the appeals were consolidated.

D
E C I S I O N

I.

Ybarra argues that the warrant to
search his apartment was not supported by probable cause because the
application failed to establish a connection between an alleged crime and apartment #2. Both the state and federal constitutions
protect against unreasonable searches and seizures and require that warrants be
supported by probable cause. U.S. Const.
amend. IV; Minn.
Const. art. I, § 10. Probable cause
exists when “there is a ‘fair probability that contraband or evidence of a
crime will be found in a particular place.’”
State v. Carter, 697 N.W.2d
199, 204-05 (Minn. 2005) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.
2317, 2332 (1983)). On review, appellate
courts consider “whether the issuing judge had a substantial basis for
concluding that probable cause existed.”
State v. Rochefort, 631 N.W.2d
802, 804 (Minn.
2001). We look to the “totality of the
circumstances” and not to each isolated component of the supporting
affidavit. State v. Kahn, 555 N.W.2d 15, 18 (Minn. App. 1996) (quotation omitted). We do not consider what information the
police possessed when the warrant was applied for, but rather what information
was presented in the affidavit. Id.

Minnesota courts have “historically required
a direct connection, or nexus, between the alleged crime and the particular
place to be searched.” State v. Souto, 578 N.W.2d 744, 747 (Minn. 1998). In determining whether such a nexus exists,
“[i]nformation linking the crime to the place to be searched and the freshness
of the information” are relevant factors.
Id. The issuing judge may “draw
common-sense and reasonable inferences from the facts and circumstances” in the
affidavit. State v. Brennan, 674 N.W.2d 200, 204 (Minn. App. 2004) (quotation
omitted), review denied (Minn. Apr. 20, 2004).

In Souto, the supreme court held that a warrant affidavit failed to
establish a nexus between drug activity and Souto’s residence. 578 N.W.2d at 749. The officer’s affidavit in that case
established that a package containing drugs had been mailed from California to
Souto at a prior residence, although Souto never received the package; that Souto
had used drugs at parties that occurred more than six months prior to execution
of the warrant; that there were numerous telephone calls between Souto’s
residence and the residence of a known drug supplier within the year before the
warrant was executed; and that the affiant knew from informants and law
enforcement officers that Souto was involved in wide-scale possession and/or
distribution of drugs. Id.
at 748. The supreme court noted that the
affidavit “did not indicate that Souto ever arranged drug deals, sold, or
distributed drugs, much less that she performed such acts from her home.” Id. The supreme court cited an opinion from
Kansas, State v. Longbine, 257 Kan. 713, 896 P.2d 367
(1995), which held that telephone calls between an individual and a suspected
drug dealer, together with the affiant’s statement that a suspected drug dealer
was believed to store marijuana at the residences of his associates, did not
provide a substantial basis for believing that drugs would be found at the
defendant’s residence. Id.
at 749.

Similarly, we conclude that knowledge
that one of Madrid’s wife’s relatives lived in
apartment #2
and that Madrid
had recently carried “three bags” into apartment #2 does not give rise to “a
fair probability” that drugs or drug-related items would be located in apartment #2. Id. at 747
(quotation omitted). The affidavit
contains no description of the bags carried into apartment #2 and no basis for
suspecting that the bags contained drugs.
The relative who lived in apartment
#2 was not alleged to have been connected with
drugs. The affidavit did not contain any
link between the person in the apartment building who said he got marijuana
from Madrid and
apartment #2. Although the district court relied on the information
that Madrid had recently brought drugs to the
area from Mexico, that trip
occurred approximately ten days before the warrant was executed, and there was
no information linking the bags that were carried into apartment #2 with Madrid’s
trip to Mexico.

The state argues that the totality of the circumstances
described in the warrant application support a finding of probable cause that Madrid kept drugs in apartment #2. The totality-of-the-circumstances approach
permits a finding of probable cause based on several factors that, standing
alone, would not provide a substantial basis for supporting a search warrant. Carter,
697 N.W.2d at 206. But even when the
facts in this affidavit are considered as a whole, there is still no nexus
between Madrid’s
drug activities and apartment #2. Because the facts in the warrant
affidavit failed to establish a nexus between apartment #2 and Madrid’s drug
activity, we conclude that the warrant was not supported by probable cause and that
the district court erred by denying Ybarra’s motion

to suppress
the gun.[1] Because Ybarra’s conviction was not possible
without evidence of the gun, we reverse the conviction.

II.

Because we are reversing Ybarra’s
conviction, we need not reach the state’s sentencing appeal. But in the interest of judicial economy, we
will do so.

A trial court has broad discretion
to depart from the presumptive sentence under the sentencing guidelines. State
v. Gassler, 505 N.W.2d 62, 69 (Minn.
1993). “We review a sentencing court’s
departure from the sentencing guidelines for abuse of discretion.” State
v. Geller, 665 N.W.2d 514, 516 (Minn.
2003). The state argues that the
district court abused its discretion by imposing a downward durational
departure of 30 months at sentencing because (1) the district court failed to
give notice that it was considering a downward durational departure, and (2)
the district court failed to articulate substantial and compelling reasons to
justify departure from the mandatory minimum sentence.

The rule governing sentencing
proceedings provides that “[i]f the facts ascertained at the time of a plea or
through trial cause the judge to consider a mitigated departure from the
sentencing guidelines appropriate, the court shall advise counsel of such
consideration.” Minn. R. Crim. P. 27.03,
subd. 1(A)(4). The rule also provides,
“[i]f departure from the sentencing guidelines appears appropriate, and the
court has not previously notified the parties . . . that
the court is considering departure, the court shall forward notification of
such consideration at the time the sentencing worksheet and any presentence
investigation report is forwarded.” Id.,
subd. 1(C).

In State v. Bock, this court held that the district court’s failure to
notify defendant of its intention to consider an upward durational departure
was not prejudicial to the defendant because the state had moved for an upward
departure before the sentencing hearing, and the defendant did not object to
the lack of notice at the sentencing hearing.
490 N.W.2d 116, 122 (Minn.
App. 1992), review denied (Minn. Aug.
27, 1992). In State v. Brennan, again addressing a defendant’s challenge to an
upward durational departure, this court held that the failure to give notice
was reversible error where the defendant did not have notice of the court’s
consideration of an upward departure until the sentencing hearing and where he
objected to the lack of notice. 674
N.W.2d at 208.

In this case, the district court did
not notify the parties that it was considering a sentencing departure until the
sentencing hearing. When the district
court invited argument on the sentencing recommendation contained in the PSI,
it does not appear that the parties were aware that the district court was
considering a downward departure or that the court had considered such a
departure prior to hearing the arguments of the parties. Despite our statement in Brennan that, “[t]he rules of criminal procedure are clear; the
court must give notice when considering a departure from the sentencing
guidelines,” we conclude that because the state failed to object to the lack of
notice, the error is not reversible in this case. Id.

The state’s argument that the
district court failed to articulate substantial and compelling reasons to
justify the departure, however, has merit.
Sentencing courts should apply presumptive sentences “with a high degree
of regularity.” State v. Curtiss, 353 N.W.2d 262, 263 (Minn. App. 1984) (quotation
omitted). Departures from the sentencing
guidelines are permitted “only when the case involves substantial and
compelling circumstances.” State v. Martinson, 671 N.W.2d 887, 891
(Minn. App. 2003), review denied (Minn.
Jan. 20, 2004). The sentencing court
must state the reasons for departure on the record. Geller,
665 N.W.2d at 516. And if reasons are
stated on the record, appellate courts “will examine the record to determine if
the reasons given justify the departure.”
Id.Under Minn. Stat. § 609.11, subd.
5(b) (2004), the presumptive sentence for Ybarra’s conviction is not less than
five years.

The district court explained its
decision to impose a downward departure as follows:

Reviewing
the PSI report and Mr. Ybarra’s prior criminal history, which consists of
wrongfully obtaining assistance in 1996, that’s the felony offense; controlled
substance also in 1996, and a misdemeanor – gross misdemeanor DWI in 2003, none
of these crimes involved a firearm or, in fact, none of them were acts of
violence. I do believe that the presumptive 60-month sentence is unduly harsh
given the nature of the criminal history and the current offense, and so I am
going to depart downward durationally.

The
district court stated in its written departure report that it departed because
Ybarra admitted to owning the gun, none of his prior felony convictions
involved a crime of violence or a weapon, the weapon was not being used or
brandished but was concealed in the home, and “[a] sixty month sentence is
unduly harsh under the circumstances.”

“[A] sentencing court has no
discretion to depart from the sentencing guidelines unless aggravating or
mitigating factors are present.” State
v. Spain, 590 N.W.2d 85,
88 (Minn.
1999). The reasons stated by the
district court are not so “substantial and compelling” as to justify the
downward departure to 30 months, half of the presumptive sentence. The presumptive sentence does not require a
showing of prior violent crimes or that the weapon was “brandished,” and,
although Ybarra’s gun was concealed, it was loaded. We therefore conclude that the district court
abused its discretion by sentencing Ybarra to a downward departure without
sufficient mitigating factors to support the departure. In the event that our determination on the
warrant issue is overturned, Ybarra’s sentence should be vacated and the matter
remanded to the district court for imposition of the presumptive sentence.

Reversed.

[1]Because we have determined that the warrant was
not supported by probable cause, we do not reach Ybarra’s alternative argument
that even if there was probable cause to search the apartment for drugs, the
application did not support a search for drug-related items such as weapons. We note, however, that looking under a couch
cushion was not outside of the scope of a search for drugs, so even if the
application did not support a search for the drug-related items listed in Form
1-1A, the district court would not have erred in failing to suppress evidence
of the gun. Cf.State v. Bradford, 618 N.W.2d 782, 795 (Minn.
2000) (holding that although the search warrant was invalid for failing to
describe all items seized with sufficient particularity, evidence seized during
the search was admissible because it was in plain view, there was justification
for the intrusion, and the items seized were apparent contraband).